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' j|S)c ^eralD and jews.
VOL XLV NO 75 NEWBERRY. S. O.. FRIDAY. SEPFRMTiF/R 1? mn? Trflf A ~~ ?
STATE LOOSES IN ?
DISPENSARY FIGHT
? of
JUDGE PRITOHARD SUSTAINED l)n
BY COURT OF APPEALS. ar|
is
Fraincrs of Constitution Never Con- eit
ceived That Southern State Would on
Engage in Liquor Business. f(>
toi
News and Courier. XV(
Richmond, Ya., Sept. 15.?In an ()f
opinion handed down shortly after 0f
noon today by the United States eir|
cuit court of Appeals Judge J. C.
I Pritchard is sustained in'his findings <?j
k in the now famous suit of the (],(
I Fleischman company and others C11
' against the South Carolina dispell- ,nc
sary commission. so,
The opinion in this ease was writ- ii()
ten by Judge James E .Boyd, district j,v
judge of Greensboro, N. C., and con- (,0
curred in by his associates, District j;,(
Judge Waddill and Chief Justice Ful- |)(>
ler. The opinion is quite lengthy,
consuming more than forty pages of
closely typewritten matter. Much of ,)e
this, (however, is devoted to t:he state- j)}.(
ment of facts. as
In the opinion proper Judge Boyd
savs in part: .,
... t Ik
there are two main propositions; .j
first, the jurisdictional, which presents
the question whether this is a
suit against the State of South Carolina
and, therefore, forbidden by eo'
the 11 th amendment; and, second, V
whether the dispensary commission is ^0(
a court incapable of having its pro- fei
ceedings stayed by a writ of injunc- s
tion by a federal court. Does this s,Vf
case come within the limits prescrib- s,u
ed? In this connection it becomes pl>!
necessary to inquire if the State lias * 1
any present interest in the fund in '
controversy which can be divested by .
a judicial determination of the true
amount, if any. justly due to the , 1
complainant? Or has the State, by
an act of the legislature, relinquished
all rights, if any existed, to enough im
of the fund to pay all the just debts
of the State dispensary? 1
"The first proposition rests largely 001
upon the construction to be given to a''
the act of the South Carolina legisla- au'
ture of February 1 (>. 11)07, providing J110
for the appointment of a commission 1"1,
to wind up the affairs of the State ?
dispensary, and Section 47 of another fm
act abolishing the State dispensary. 's
The State, through its legislature, T,n
has passed both the title and posses- ' 10
sion of the fund to the commission 1
for the purposes designed in the act.
The fund being in the hands of the ,)n
commission charged wit'll tliis duty, ?
the Slate has no interest in so much VVo
, thereof as is necessary to pay the
just debts." in'
Dispensary Fund a Trust Fund. ('u'
The court cites the case of the
United Stales vs. Planters' Bank of {
Georgia (22, t\ S.,) and many other sar
decisions, sustaining this position, in- cm
eluding the case of (hinler. Attorney coi
General, vs. Atlantic Coast Line Bail- Ca
road, (200, 1*. S.,) "In what eapaei- me
ty," asks the court, "are Mie mem- Sti
hers of the commission acting? Are it
they oflicers of the State of South we
Carolina or are they agents appoint- tra
ed under an act of the legislature me
empowered to take possession of a pei
certain fund, and directed to admin- we
ister such fund in a certain manner? an;
We are constrained to hold that the me
funds in their hands are held in trust mis
for the payment of the .debts men- or
tioned, and tdiat the creditors of the ?]
State dispensary have a property in ion
I the fund in the hands of the commis- Cai
jj sion to the extent that the debts are the
i shown to bo just, and that a judicial agr
determination of the true amount of olii
such debts can in no way .iffeet the "i>
rights and interests of the State. fmi
"Having, therefore, determined the till
I' relation of the appellants to the funds by
in controversy, we answer the. ques- Soi
tion propounded in the outset that us
this is not a suit against tlie State, ires
<and that the complainant is not for- It
bidden to maintain his action by the 1'ie
11th amendment of the constitution for
of the United States. This suit is pen
not. against the State nor is the State 1
1111 indispensable party. Pri
"Treating the funds in the hands par
of the appellants as a trust fund and T
the duties of the trustees being clear- Hie
ly defined, the trustor is not even a P.
ossary party to a suit brought to
ipel the trustees to discharge their
ies. The position appears to be
t the agents and representatives
the debtor should constitute a trilal
absolute in its character to
itrarily pass upon what, if anything
ilue an alleged creditor, and if a
iin lie adjudged invalid to put an
1 to it without further opportunity
redress on the part of the credilo
uphold such a contention
ild be to deprive such a creditor
his property without due process
law."
The State a Liquor Dealer.
lie court further announces that
' conception and adoption of
eleventh amendment it never
e'red the minds of the fin's
ol the amendment that a
ereign State would engage in the
lor business and become a trader
buying and selling an article to
unon trafTie in competition with
citizens of the country. It mav
questioned, therefore, whether the
te ot South Carolina was oxoroisa
governmental prerogative in
forming a function necessarily or
perly incident to its autonomv as
;i State."
n reference to the provisions of
11th amendment Judge Boyd uses
following language:
Undoubtedly the 11th amendment
; intended to prevent the federal
rt in suits prosecuted by citizens
another State or citizens or subs
of a foreign State from interng
with a State in the process of
autonomy, in maintaing its own
em of self-government so long as j
It system is in harmony with the
stitution of the United States. To
end, therefore, the funds of t'he
te in its treasury, or held by its
ers or agents for use in the ndisfratiou
of the governmental af s
in the State arc m>1 to be afed
by the process of a federal
rt, nor can such court entertain
sdietion of an action which lias
its purpose the invasion of the
its ol the Stale In manage and
trol its internal atVairs or of an
on w<liich will obstruct (lie State
loritv or impair llie State instruitalities
in the discharge of legitte
functions in the maintenance
he State's integrity. To be more
eise, the constitutional limitation
the efleet I lint the courts of the
ted States cannot entertain jurision
in an action at the instance of
iti/.en who seeks to recover as
inst the State ^the property boring
to the State, or Mio purpose
which is and the result of which
ild be, to disturb I lie legal and
M-ly administration of-the Stale's
rnal governmental alTairs by ils
kr appuinled officers and agents."
The Commission not a Court,
s to whether or not the dispen'
commission is a court is briefly
-idered. Judge Boyd cites the
-dilution of | fie Stale of South
olina, providing for lh<> establisliit
of the differenl courts of the
te, (he court holding thai while
s (rue I hat (he commissioners
e empowered to investigate the
lsacfions connected with managoil
and control of the State dissary
before ils abolishment, tliev
e not empowered to determine
issue of fact, enter any jndgit
or conclude any party that
lit be investigated as to any right
ntcrest involved.
ndge Boyd then refers to the opinof
die supreme court of South
olina deciding (hat a suit against
dispensary commission was a suit
ins! I he Stale. "The South Cara
supreme court," savs the judge, j
entitled to and has our most pro-1
id respect, but we do no! feel en-[
d to adopt the construclion given;
that tribunal !o the statute of!
Ih ( aroliua. I'ho law governing!
s well settled in the case of Bur-J
vs. Seligman, 107, United States.;
s our conclusion, therefore, that '
conclusion of the circuit court
I he district of South Carolina aped
from should* be affirmed."
will be seen from this that Judge
chard has been affirmed in every
icular.
nmediately after the reading of
opinion by Judge Boyd, Mr. W.
Stevenson, of Clieraw, S. C\, asked |
for a stay of sufficient length for t
preparation of an appeal in the ca:
lie first asked for a stay of six
days, but .)udge Hoyd suggested tli
tortv days would bo ample. The ?
der was entered that a slay of inn
date lor t.hat length of time be >
lowed. Mr. Stevenson represented I
attorneys who appeared for the d
poMsary board and came here at the
request.
LYON WLL APPEAL.
Attorney General Disappointed Ov
The Dispensary Decision.
Columbia, Sept. l.">.?Attorney tie
Lyon slates that the dispensary ca
will be taken up to the United Stat
supreme court. Just how the malt
will go up cannot now be said, but
is the determination of the attorn
general that the highest court in t
land shall .pass on tin? issues involv
and in this | lie attorney general li
the lull approval of Governor Ans
The decision of the court of a
peals was naturally a great dis:i
pointiiiciiI to Mie administration, i
peciallv to the attorney general, h
I lie lull text of the decision lias n
yet been received here, and Mr. I,\i
could not make any extended comme
on il lliis evening. It appears, ho
ever, that the Slate has lost on pru
ti'*ally all points, which, of course, i
dudes the question of jurisdicti<
It is stated, however, that the ma
dale of the court has been s(ay<
f ?r forty days, and in this time t
policy of t he admiuisl rat ion as
the next steps will be determine
Meanwhile the collateral for tl
money involved is safely locked
the vaults of the State treasury, at
it will be some time before the Sla
is required to give il up if an appe
is perfected, which will almost ee
taiuly be done.
I his decision means that the crii
inal cases pending in connection wi
the administration with the late Sta
dispensary will not be tried an\ tin
soon; not until the Federal suprcn
I court has the opportunity to pass <
(lie case.
A MACEDONIAN CRY.
Aiken Farmers Call on Smith
Boost the Price of Cotton.
News and Courier.
Aiken, Sept. It).?A number <
Aiken county's farmers held an 1
formal meeting this morning, and II
low price of cotton was tlie .>ub,)e
; for discussiou. Since the iioniiuatii
of "Cotton" Smith for the I'niti
States senate, they though! the pri
| should be around 1."? cents, so tl
body resolved to telegraph him a bo
the mailer. They drafted the folio'
ing telegram:
Aiken. S. ('., Sept. 1(1. I!)US.
Mr. 10. I). Smith, Florence, S. ('.We
respect fullv call your attention
the downward tendency oi' the pri
ol cotton, which will soon reach zer
Do please, Mr. Smith, come to oi
rescue, We stood by you in vol
distress, now do please stand by i
in the time of peril. Mr. Smith,
you can't raise I he price of col to
please send a wireless to Cncle lie
who is now in Europe.
Aiken County Farmers,
Why?
Harper's Weekly.
Nat Goodwin, I he actor, has
friend who owns a country place
Maine that is ten miles from a rai
way station or telegraph office, a fa
ol which Goodwin is duly cognizan
Now Mie player used often lo vis
this friend, whom die has ever font
a lavishly hospitable host, and wl
has lime and lime again advised th;
there is a room at the place in Mail
ready for him whenever he cares I
occupy it.
On one occasion Goodwin cabh
from London: "May f stay over tl
third Sunday in September?"
The friend paid $5 to the messci
gor who brought (lie cable niessag
likewise a sum necessary to defrn
the cost of his reply: "Of course, In
don't cable."
Whereupon, Goodwin innocent!
sent; (his query by cable, "Wli
not ?"
ho COMMON PLEAS COURT
50.
t.v Considerable Amount of Bus
Disposed of?Court Likely I
>,_ Continue all the Week.
ill
While not many jury cases
no boon tried, the common pleas t
,s~ Judge Memniiugcr presiding, Inn
-H" posed of considerable business
week, and the probability is Ilia
court will continue throughout
week.
The first case tried in the
er court house-was that of \Y. I{. 1
night v. the Southern railway
tV.\ V( . . v
:: - - .f'
n|'(1
A. II. HAWKINS,
Koreman of first jury empanch
, the new court house.
u.
lie pany. This case was taken up
in mediately after the dinner reces
id Monday. Mr. A. llayne Ilawkin
to Prosperity, was made foreman o
al jury, signing the first verdict ii
r- new building. The other meinbe
the jury were: I'. (I. (ilenn. 'I
n_ Dominii'k, .1. I>. I>laek, I). Ii. Coo
tli S. Werls, X. Y. Dennis, J. 1,. M
I,. .). T. linker, Cyrus H. Seliumpei
ne A. Wallace. I'. Singley. The
m? plaint was read to the jury by
,n '? Hunter, of the firm o.f I
Hunt & Hunter, who represent e?
plaintiff. The answer was reai
Dr. (leo. H. Cromer. <?f the fir
Johnstone & Cromer, who reprc.si
to the defendant railway company.
The plaintiff alleged t!':it <it
the early spring of 1 !>()(? lie tem
to the railway company at Old '
>>f a car load ??f seed for shipment
n- Mr. A. T. StAmaml; at that
lm agent of the road, agreed for hi
< < liaive a certain car which had
"i placed in which to load liis seed,
'd t h;it the car was pushed out ?I
ce sition in shil'ling, :iiul Mr. SiAi
refused to have it replaced for
leaving it in a position where
|V~ could not load it. Mr. Roukniuhl
that lie had a contract with the S<
ern t'otton Oil company in Xowl
? to lake his seed at the highest
|o kel price which was offered him,
ce to pay him a certain commission,
o. reason of his being delayed in
hi* ing the car. he said, he was f<
ur t'> sell out to another buyer at
us Town, selling at the market |
if but losing Ii is commission on the
n, lie sued for $1,!)!).">, actual and |
n, live damages.
The railroad contended that
Houkuight was given all the ac
modal ions which could be given
consistent with its duty to other :
pors.
a Mr. T. II. Hunt made the opc
|n argument for the plaintiff, and
|j_ followed by Mr. .1. M. Hunter foi
,.| plaintiff, and Mr. Cromer and
,1 Johnstone for the defendant. Mr
|j II. Hunt closing for the plainlif
id In charging the jury Judire .N
10 mingcr slated that, inasmuch as
it would wrile the first verdict t<
ie written in the new bnildinir.
|o would naturally be on their met I
mete out justice. His charge
d clear and exhaustive.
ie The jury retired shortly a tier
diunvr recess on Tuesday a fieri
ii- and after remaining out about
e, hour and a half, brought in a vei
iy for the railway company,
it The first case on Wednesday in
was (hat of Mat tie Young v. I
ly Kddy, suit for $11-1 and interest,
ly plaintiff alleging that $111 had
paid, on a note held by the defen
I *T JVW -a. TV J
'
end s'bove whiil was due oil the ' re<
note, the whole amount claimed he-1 till
liness irg $1')S 0."?. The plaintiff was rep-J
;o resented bv Messrs. Simp.'.on, Cooper' wa
(.V; IV'bb, of Laurens, and Messrs. So
Hunt, Hunt & Hunter of the local lit'
have bar. No nienlber of the Laurens firm Hh
ourt, was present, the members of the lo- dm
? dis- eal firm appearing for the plaintiff, er.
this The defendant's attorney was Mr. all
I the Cole. L. Hie use. Mr. Mease being j pa:
the mil of |lie city, a motion for a eon- we
tiuuance on that ground was urged, oik
new hut was refused by I he tourl. Mr. Cli
iouk- Fred. 11. Dominick. Mr. Mease's law inl
com- partner, was in court, but the ease tat
was Mr. Hlease's case before the for- adi
., million of the partnership, and Mr. Me
Doniiniek Mas not an attorney of nol
record. I'pon the refusal of (lie mo- sin
SpM linn for a continuance, i! developed I lit
RKjn that the defendant was not in at- ret
tendance upon the court, and Mr. tin
j?l| Dominick consented thai judgment
should be laken fur the ainonnt claim- ''I
K I'll. 'I'lie .jury? I he second empanelled
! in the. new building?-was composed Mr
ot the following gentlemen: William
I lolmsun. foreman; ('. 11. Shannon,
| t'vrns H. Scluunpert, .1. <i. Hrowu, .1.
V j A. Wallace, Hubert T. Hugh, (?. S. ?
Ey | Hunt'. A. Iiiirtun. W. W. Herlev, to
' Haker. .1. U. Hrehnicr. I). H. we
i t 'uok. St:
' was announced that the case of fro
Milhurn Wagon company v. A. T.
j Hruwn had been adjusted. I!"
Mk The two eases of Mrs. I,alia H. (>-!<
! Stockman and Adam L. Anil v. the lli;
Southern Railway company were tried sec
(d in her, the plaintiffs being repre- llo
| seated by Messrs. Hunt, Hunt & of
i Hunter and the defendant by Messrs. sail
ini- j .lohuslone & Cromer. These cases fee
is on ' were laken up on Wednesday morn- 4
s, of j ing, and concluded shortly after din- are
I" the j tier mi Wednesday afternoon. The iod
i the I testiniuny of the plaintiffs was to ab>
rs of j the effect that Mr. Adam H. Anil dil
'. A. ; had received a message from Ilis son- per
>k, .1. (in-law in ('n)mnbia, in Sepleinber, ed
iller. 1MM, lelling him of the serious ill- a f
|, .1. : ncss uf his daughter, and telling him SI:i
cum- j to nunc lo Columbia on the first
Mr.'train. Mr. Anil and his wife who ||M,
Inn!. | had since died ?and his daughter, Vai
I the Mrs. Sluckmaii. and I wu of their
>1 by children, wenl lo the depot al Hoinar- ||l(,
in of ia to take tin- mixed train which al |);l|
nted that time passed Homaria somewhere sjn
about nine o'clock. Their testimony Val
iring wns 'he effect that they flagged u,H;
lered '1 down, and tliat the train ran about |'m
I'owu 'XVo hundred yards below the regular
that s'"PI)'nir place before stopping, where- (j()
time j nP?n they gathered up their baggage n,,|
m |() ami started towards the train, when Sj(,
been 'he train pulled out and left them. j
and i 'he.v were forced, they said, t<? wait
I' po- I '"r Hie regular passenger, which at
nam! "Iil- time passed I'omaria between ^
him :,ni' '~ o'clock. The wailing room,
|n? |'hey stated, wa> closed, and the
said xvea' her was cool, and they had sufMllli
''ered t !nni-cl\c> |>y the wail, and had '
,errv had considerable difficulty in taking
mar- Ismall children they had
Hid |w''h I hem. They alleged small peeiin- I
i?v(iary h>s> after tlieir arrival in ('uluin- b*a
I,,.,,)', j hia a> a result of having been delay- <'ai
l i I'll. wn
>rced
Old I he railroad contended that for I ho hci
ice mixed train I'omaria was only a flag hay
station, and the waiting room was the
ami- m'ver open at night. They produced sii|
evidence in regard to the weather, c*nc
contending that it was mild, and of- I
fering the meleori>logical record of sin
^li'in" <',>vernment Observer W. (J. Peter- pli<
,. son in support, of their contention bin
> They urged that the plaintiffs in hav- gai
ing lo wait for the regular passenger sin
ning had not been damaged, contending 1
was that the regular passenger had better get
the aceoinrnodalions than the mixed train, cor
and that the mixed train was late and tri<
'' arrived in Columbia only 215 minutes shu
' ahead of the train which they had en
I cm - intended to take. lyji
they The jury, after remaining out a siir
> be short while, returned a verdict in the'our
they suni of $2'I0 for the plaintiff in each I
le to case. , has
was The case of |)r. (!. Y. Hunter v. a ^
Henry 11eyman el al., involving the hav
the possession of two mules, was then Tin
toon, taken up. the' plaint i IT being repre- fiv<
an senti'd by Messrs. Hunt, Hunt, & lin;
"diet Hunter, and the defendants by 111i.Messrs.
Johnstone & Cromer. It was (
lorn- agreed to try the case before the pre- knr
Dora siding judge without the intervention aim
the of a jury. The testimony was con- full
been eluded on Wednesday afternoon.
dantj Argument in the matter was defer
Ui-Cijx. ?i.nu A X JUAH
I vest('rdav morning {,, order to
?' up again the jury I rials.
n';; T?:,s" >?'siorday "morning
s ,,,a( ??' T"'uisa y. | he
" 1UM,'" company, (lie plain,
t being representod by Messrs.
>as(; & Uominiek and 'the defend
?rt:ss,'s- Johnstone & CromMio
defendant, a colored woman
i'g*d injuries as (he resull of two
ssengers on the Southern, which
re to pass at Montgomery, and
'?! which she was on, going lo
arleston In he operated upon, ran
? one of I hem was
:?ig the siding. The defendant
nit led negligence, a?d ??dor Judge
'milliliterV decision (he case, was
???ie for punitive damages, i( was
'Ply a question for I ho jury as to
Jiiiionnt of ihe injury. The jurv
11,111 . :l v,,'dict of fifty dollars' for
' plaintiff.
>UTCH WEATHER PROPHET."
J:, IIo"seal Says First Frost
Will Bo October 6-9?Killing
Frost 10-17.
W. 1\ llousenl who is Known
"I ""I' readers is f.iniishiuJ;?'v?-?s|s
for ||,e Columbia
,h'- M,r l??lh?winy is forecast for
prini<>d on Wednesday :
'Tlie firsi frosl lor li.,. fall of
" U ,M in I be period of Oet
Killing frosl will occur Oct.
I'- I'liis forecasl includes the
' ??n north and west of Columbia,
"ever. | he sandy or lower sections
">e Slate may likewise liave the
lie ros| teniperalures and be afled
accordingly.
' Severe equinoei isil disturbances
appreluuided during (lie nerSepl.
on a ml of ihe
and planetarv con"'"s
which prevailed al tlie storm
7'1 Aug. 17-iM. and which cans"'e
great flood as foreshadowed in
"n'cas| published on Aug. 1.1 in the
ilc.
'no! winds will pr,v.,i, during
remaining porlions Sep,en,be,'
laole I ron, north lo northeast. The
,st' ion is ,|1H> (l)
excessive precipilali ? ||?. A|).
achiau watershed a* well :|s j,,
'i,in' l,|,(,('i|>ilal ion in Ihe central
7s; How into Ihe gulf and
AI hint ic. and which al Ihe same
ie cause local slorms along I he
1 ,'""1 A Haul i.. coasts. Those see"S
'"''eeive ||,e win,I which flies
,lM' ?*?;? res of asl wise
iim.>. and in some periods also ||?>
"s accompany ilie slorms."
* * * * * * >: * * ? >,
SUNSHINE. .i
Open Letter to News Readers <
* * * * * * ? * * * *
''n,'":ls: As and
'ler in Sunshine work in Soiiiii
r"lill;' -Marye |{. Shelor has
"<gM faill,fully and well, f mler
energetic leadership the work
! grown and prospered exceeding
bnghlesl hopes of j|s mosl loval
>j?orters, ami today shows more
'"iiragcmcnt I ban ever before.
bit Ihe demands of time ami
cnglh are very great, ami mull,' il.v
ol cares and dulics a heavy
del,. MspeciaII v taxing lo (he oruxors
eyes, which, never verv
I>ng, arc severely I axed.
Recognizing tin*'help i| will be in
ling Ibrough will, a verv lar<>e
respondence .Master I'Yed ' McK'fl"k.?
'itIle So,,11, Carolina
it-in and loyal Simshiner has giv;l
("ward a fund lo by a
"writer lo be sent a Christmas
<" Stale headquarters and
loved leader.
writer is down a dollar and
agreed |? act as treasurer. For
?>d, serviceable machine we must
e nol less than twenty-five dollars,
e ,s short. A re | here not | wenty'
gtwid Sunshine,s in South Car'oi
wlm will give a dollar each to
? fund ?
'outribnlions will be promptly ae wledged,
and information as to
is and progress of the work cheerv
given.
Faithfully yours in the work,
Carter Riser.